Broadcasters are going to start off the New Year by going to the Supreme Court to challenge the FCC’s role in defining the public interest and how broadcasters meet it. The court’s decision has immense implications for broadcasters and the public.
In 1969, a Supreme Court decision upheld the idea that spectrum is scarce and, that being so, the FCC has the responsibility to police the airwaves by, among other things, deciding ownership limits. The Red Lion case (named after a fundamentalist radio station in Red Lion, Pa., that refused to give airtime to someone it had demeaned) upheld the need for the fairness doctrine and the FCC’s role in monitoring the business of the medium. Though the fairness doctrine eventually went away, the FCC’s other roles have not.
Now companies with major broadcast holdings, including Fox, Viacom and Sinclair, are preparing to argue to the court that there is no real scarcity of media outlets in this world and that all ownership restrictions should be lifted. We can see their point. When Red Lion was decided, there was no Internet, no widespread cable penetration and no satellite services. There were just three networks. There was no digital capacity to allow for the squeezing of more and more channels into available spectrum, or low-power TV. There was a handful of conventional media outlets available in communities, not dozens and dozens.
Spectrum remains a public resource, which broadcasters recognize, but whether it is scarce is another question. Whether that perceived scarcity should continue to allow the government to control the electronic press in a manner unthinkable if it were applied to print is the key question.
We have argued alongside broadcasters for decades that the Red Lion rationale should be jettisoned. Antitrust laws should be sufficient to guard against monopoly business practices. The public and broadcasters, not government, should be the arbiters of content.
We still believe that, but some broadcasters, intent on serving their shareholders rather than those in their communities, have not helped make their own case in recent years.
The concentration of radio and TV groups, studios and rep firms has an upside in operational efficiencies and has certainly been mirrored in other businesses. But ask the reporter (formerly) on the beat or the producer in the unemployment office, and you will be told that there has been a downside in human terms. Ask the citizens with an unconventional opinion or iconoclastic musical taste, and they might tell you a different story, too. Consolidation can’t help affecting the end product. The “powerful” Internet that people talk about still largely lacks the things that make broadcast stations influential: advertisers, money and institutional history.
But as we have seen with the indecency crackdown, giving the government power over information outlets can pose threats far greater than the perceived dangers of consolidation. Is the public well-served by broadcasters whose size, scope and content are subject to government control—five politically aligned FCC commissioners and a Congress with obviously partisan interests? Or is it better-served by a press that is allowed to be big, obnoxious, opinionated, powerful … and free, like print? How the Supreme Court sees it may set the stage for a stunningly different media world in 2005.